Citation Nr: 0019747
Decision Date: 07/27/00 Archive Date: 08/02/00
DOCKET NO. 95-33 465 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to service connection for asthma.
2. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for
hemangioma of the face.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. W. Loeb, Counsel
INTRODUCTION
The veteran served on active duty from March 1968 to March
1970. This case was remanded by the Board of Veterans'
Appeals (Board) in May 1996 to the Department of Veterans
Affairs (VA) Regional Office (RO) in Waco, Texas, for
additional development, to include attempts to obtain any
additional service medical records at the National Personnel
Records Center (NPRC) or Fort Polk, Louisiana. No additional
records were found at the NPRC or at Fort Polk. The case was
returned to the Board in June 2000.
A September 1999 rating decision denied entitlement to
service connection for headaches, and the veteran was
notified of this action and of his appellate rights in
October 1999. Since no subsequent correspondence addressing
this issue has been received from the veteran or his
representative, this issue is not currently before the Board.
FINDINGS OF FACT
1. The claim for service connection for asthma is not
plausible.
2. Service connection was denied for hemangioma of the face
in unappealed rating decisions dated in October 1982 and June
1987.
3. Evidence which is not cumulative or redundant of evidence
previously of record and which is so significant that it must
be considered to fairly decide the merits of the previously
denied claim has not been received since the June 1987 rating
decision.
CONCLUSIONS OF LAW
1. The veteran has not submitted evidence of a well-grounded
claim for service connection for asthma. 38 U.S.C.A.
§ 5107(a) (West 1991).
2. New and material evidence to reopen the veteran's claim
for service connection for hemangioma of the face has not
been received. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R.
§ 3.156(a) (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by military
service. 38 U.S.C.A. § 1110 (West 1991).
Continuity of symptomatology is required when the condition
noted during service is not shown to be chronic or where the
diagnosis of chronicity may be legitimately questioned. When
the fact of chronicity in service is not adequately
supported, then a showing of continuity after discharge is
required to support the claim. 38 C.F.R. § 3.303(b) (1999).
A preexisting injury or disease will be considered to have
been aggravated by active military service where there is an
increase in disability during such service, unless there is a
specific finding that the increase in disability is due to
the natural progress of the disease. 38 U.S.C.A. § 1153
(West 1991); 38 C.F.R. § 3.306 (1999). Clear and
unmistakable evidence (obvious or manifest) is required to
rebut the presumption of aggravation where the pre-service
disability underwent an increase in severity during service.
This includes medical facts and principles which may be
considered to determine whether the increase is due to the
natural progress of the condition. 38 C.F.R. § 3.306(b).
Aggravation may not be conceded where the disability
underwent no increase in severity during service on the basis
of all the evidence of record pertaining to the
manifestations of the disability prior to, during and
subsequent to service. 38 C.F.R. § 3.306(a); Falzone v.
Brown, 8 Vet. App. 398, 402 (1995). Temporary or
intermittent flare-ups during service of a preexisting injury
or disease are not sufficient to be considered aggravation in
service unless the underlying condition, as contrasted to
symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292,
297 (1991); Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993).
Bronchial asthma may not be disposed of for compensation
purposes as a constitutional or developmental abnormality.
Service connection must be determined on the evidence as to
existence prior to enlistment and, if so existent, a
comparative study must be made of its severity at enlistment
and subsequently. Increase in the degree of disability
during service may not be disposed of routinely as natural
progress nor as due to the inherent nature of the disease.
Seasonal and other acute allergic manifestations subsiding on
the absence of or removal of the allergen are generally to be
regarded as acute diseases, healing without residuals. The
determination as to service incurrence or aggravation must be
on the whole evidentiary showing. 38 C.F.R. § 3.380 (1999).
Asthma
As a preliminary matter, the Board must determine whether the
appellant has submitted evidence of a well-grounded claim.
If he has not, his claim must fail, and VA is not obligated
to assist him in the development of the claim. 38 U.S.C.A.
§ 5107(a); Grottveit v. Brown, 5 Vet. App. 91 (1993); Tirpak
v. Derwinski, 2 Vet. App. 609 (1992).
The United States Court of Appeals for Veterans Claims
(Court) has stated repeatedly that 38 U.S.C.A. § 5107(a)
unequivocally places an initial burden on a claimant to
produce evidence that a claim is well grounded. See Grivois
v. Brown, 6 Vet.App. 136 (1994); Grottveit v. Brown,
5 Vet.App. 91, 92 (1993); Tirpak v. Derwinski, 2 Vet.App.
609, 610-11 (1992). A well-grounded claim is a plausible
claim, that is, a claim which is meritorious on its own or
capable of substantiation. Murphy v. Derwinski, 1 Vet.App.
78, 81 (1990). The Court has stated that the quality and
quantity of evidence required to meet this statutory burden
depends upon the issue presented by the claim. Grottveit at
92-93. Where a determinative issue involves medical
causation or a medical diagnosis, competent medical evidence
to the effect that the claim is plausible or possible is
required. Id.
Further, in order for a direct service connection claim to be
considered plausible, and therefore well grounded, there must
be evidence of both a current disability and evidence of a
relationship between that disability and an injury or disease
incurred in service or some other manifestation of the
disability during service. Rabideau v. Derwinski, 2 Vet.App.
141, 143 (1992); Brammer v. Derwinski, 3 Vet.App. 223, 225
(1992); Cuevas v. Principi, 3 Vet.App. 542, 548 (1992).
The veteran's service medical records reveal that he
indicated on his November 1967 induction medical history
report that he either currently had asthma or had had it in
the past. On physical examination in November 1967, the
veteran's lungs and chest were normal. He complained in June
1969 of sinus problems and a cold. It was noted that he had
a previous history of a sinus condition. He had occasional
wheezes in both lung fields. The examiner noted an upper
respiratory infection - asthmatic bronchitis; medication was
prescribed. The veteran again noted on his February 1970
discharge medical history report that he either currently had
asthma or had had it in the past; sinusitis and hay fever
were noted under the "Physician's Summary" on the back of
the report. His lungs and chest were normal on physical
examination in February 1970.
Outpatient treatment reports of Jimmy K. Lu, M.D., dated from
August 1977 to September 1979, reveal a diagnosis of allergic
bronchitis from paint fumes.
Private outpatient records from Dallas County Hospital
District, Parkland Memorial Hospital, beginning in March
1981, as well as VA outpatient records from November 1993 to
October 1995, reveal treatment for asthma. It was noted in
March 1992 that the veteran had had asthma since 1980.
The veteran testified at a personal hearing at the RO in June
1993 that he had not had a problem with asthma prior to
service entrance, that he had wheezing in service, and that
he had been treated for asthma on several occasions in
service although some of the treatment was not recorded in
his service medical records. He testified at a personal
hearing before the undersigned sitting at the RO in September
1995 that some of his service medical records appeared to be
missing and that he has had received continuous treatment for
asthma since soon after service discharge.
An August 1995 decision of the Social Security Administration
(SSA) granted disability benefits due to the veteran's asthma
effective November 1992.
The veteran's service medical records show a single clinical
notation of asthmatic bronchitis in service in June 1969.
His lungs and chest were noted to be normal on discharge
physical examination in February 1970. Moreover, the initial
post-service notation of respiratory disability was not until
August 1977, over seven years after discharge, and asthma was
first noted in March 1981. According to March 1992 records
from Dallas County Hospital District, the veteran had had
asthma since 1980. There is no medical opinion on file
linking the veteran's asthma to military service.
Since the veteran's lungs were found to be normal at service
discharge, there is no medical evidence of chronic asthma for
a number of years after service discharge, and there is no
medical evidence of a nexus between the veteran's current
asthma and service, the Board finds that the veteran's claim
for service connection for asthma is not well grounded.
New and Material Evidence
Generally, a claim which has been denied in an unappealed
rating decision may not thereafter be reopened and allowed.
38 U.S.C.A. § 7105 (West 1991). The exception to this rule
is 38 U.S.C.A. § 5108 which provides that if new and material
evidence is presented or secured with respect to a claim
which has been disallowed, the Secretary shall reopen the
claim and review the former disposition of the claim.
New and material evidence is evidence not previously
submitted to decisionmakers which bears directly and
substantially upon the specific matter under consideration,
which is neither cumulative nor redundant, and which by
itself or in connection with the evidence previously
assembled is so significant that it must be considered in
order to fairly decide the merits of the claim. 38 C.F.R.
§ 3.156(a). New evidence will be presumed credible solely
for the purpose of determining whether the claim has been
reopened. Justus v. Principi, 3 Vet. App. 510, at 513
(1992).
Service connection was denied for hemangioma of the face in
October 1982 because the condition preexisted service and was
not aggravated thereby; the veteran was notified of the
decision later in October 1982 and did not file a timely
appeal. This denial was continued by a rating decision dated
in June 1987. The veteran was notified of this decision
later in June 1987 and did not file a timely appeal.
Evidence on file at the time of the June 1987 rating decision
consisted of the veteran's service medical records, color
photographs of the veteran's face, and a statement from the
veteran.
The veteran indicated on his November 1967 medical history
report prior to service entrance that his right eye and head
had been injured, and it was noted on his November 1967
physical examination report that he had a pigmented area of
the right face. He was sent for surgery consultation in
March 1968 for evaluation of the residuals of an injury to
the right side of his head, with headaches and pain, that had
occurred approximately 14 years earlier. Examination
revealed multiple nodules in the scalp, forehead, and eye
area. It was suspected that the veteran had cavernous
hemangioma and/or fibroma. On plastic surgery consultation
in July 1968, skull X-rays did not show any calcification.
The veteran's ability to comfortably and adequately wear a
helmet was questioned. No neurologic abnormality was found
on evaluation later in July 1968. It was noted in August
1968 that there was tenderness over the facial malformation
and that the veteran should avoid repeated contact on the
right side of the face. The veteran was given a physical
profile later in August 1968 in which he was not to wear a
steel pot or helmet liner because of the hemangioma on the
right side of his face and head; it was noted that he was not
medically qualified for duty in Vietnam. A cavernous
hemangioma of the right forehead was noted on the veteran's
February 1970 discharge physical examination report.
Evidence received by VA after the June 1987 rating decision
consists of private treatment records beginning in August
1977, the transcript of the veteran's June 1993 personal
hearing at the RO, VA outpatient records dated from November
1993 to October 1995, the August 1995 SSA decision, the
transcript of the veteran's September 1995 travel board
hearing, and statements by and on behalf of the veteran.
According to a January 1985 report from Stephen L. Blum,
M.D., the veteran had a history of lesions on the right side
of his face and scalp since birth, which have become more
nodular with time. The veteran testified at his personal
hearing before the undersigned in September 1995 that his
preexisting hemangioma was not a problem when he entered
service and that it was permanently aggravated by his
military training.
Although right-sided hemangioma is noted in the outpatient
records from Parkland Memorial Hospital and from VA, much of
the medical evidence received since the June 1987 rating
decision provides no information relevant to the veteran's
hemangioma. Moreover, none of the medical evidence received
since the June 1987 rating decision suggests that the
hemangioma increased in severity during or as a result of
service. Therefore, the Board must conclude that the medical
evidence added to the record since the June 1987 rating
decision is not material.
In his statements the veteran has expressed his belief that
his hemangioma of the face was aggravated by service. His
lay assertions of medical causation cannot serve as a
predicate to reopen the claim. See Moray v. Brown, 5 Vet.
App. 211, 214 (1993).
Therefore, the claim for service connection for hemangioma of
the face has not been reopened.
ORDER
Service connection for asthma is denied.
The veteran's application to reopen his claim for service
connection for hemangioma of the face is denied.
SHANE A. DURKIN
Member, Board of Veterans' Appeals